Swain v. Maxwell

• Decision Date: 09 September 1946
• Docket Number: 39748
• Parties: Grace M. Swain, Louis G. Mohr and Olga L. Mohr, His Wife, G. F. Steinkraus and Emma P. Steinkraus, His Wife, Billy Van Hinkson and Alta Hinkson, His Wife, and Nellie Stroup v. William F. Maxwell, William J. Kyle and Beatrice Kyle, His Wife, Appellants
• Court: Missouri Supreme Court

196 S.W.2d 780

355 Mo. 448

Grace M. Swain, Louis G. Mohr and Olga L. Mohr, His Wife, G. F. Steinkraus and Emma P. Steinkraus, His Wife, Billy Van Hinkson and Alta Hinkson, His Wife, and Nellie Stroup v. William F. Maxwell, William J. Kyle and Beatrice Kyle, His Wife, Appellants

No. 39748

Supreme Court of Missouri

September 9, 1946

Motion for Rehearing or to Transfer to Banc Overruled October 14 1946.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Arthur D. Scarritt, Arthur N. Adams and Arthur N. Adams, Jr., for appellants.

(1) The court has jurisdiction of this case because it involves title to real estate. Toothaker v. Pleasant, 315 Mo. 1239, 288 S.W. 38. (2) The court erred in setting aside and canceling the warranty deed from defendant William F. Maxwell to the defendants William J. Kyle and Beatrice Kyle, dated March 15, 1945, purporting to convey Lot 17, and the north 7 feet of Lot 18, corrected plat of Kidwell's Addition, an addition in Kansas City, Jackson County, Missouri, and holding it for naught. Secs. 3401, 3405, 3406, R.S. 1939; Bagby v. M.-K.-T.R. Co., 351 Mo. 79, 171 S.W.2d 673; Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217; Gratz v. Highland Scenic Ry. Co., 165 Mo. 211, 65 S.W. 223; Union Stock Yards Co. v. Nashville Packing Co., 140 F. 701; White v. White, 108 W.Va. 128, 150 S.E. 531; Mueninghaus v. James, 324 Mo. 767, 24 S.W.2d 1017. (3) The attempted restriction in this case is invalid and unenforceable because it cannot accomplish its purpose in view of the fact that all of the lot owners in the three additions mentioned did not sign same, with the result that the lots which are not affected by this agreement or any restriction against colored people, and which they are free to own and occupy, are interspersed with those lots to which the restrictive agreement purports to apply. Thornhill v. Herdt, 130 S.W.2d 175; Pickel v. McCawley, 329 Mo. 166, 44 S.W.2d 857; Foster v. Stewart, 134 Cal.App. 482, 25 P.2d 497; Toothaker v. Pleasant, 315 Mo. 1239, 288 S.W. 38; Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217; Buchanan v. Worley, 245 U.S. 60, 62 L.Ed. 149. (4) The automatic renewal is invalid. To require two-thirds of all of the owners of property in the three additions to take affirmative action to prevent the renewal of the restrictions is illegal because most of the present owners are not parties to and do not have any interest in the restrictions. It discriminates against defendants, William J. and Beatrice Kyle, on account of their race and color. (5) The change in the conditions of the property in the three additions mentioned by plaintiffs has been such that it would be inequitable to enforce said pretended restriction or the renewal thereof. Hundley et ux. v. Gorewitz, 132 F.2d 23; Pickel v. McCawley, 329 Mo. 166, 44 S.W.2d 857; Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217. (6) Plaintiffs' right of action, if any they have, is an action at law for damages for breach of covenant. The covenant was made by Martha Kuebler, and she, while a party to the suit, was not included in the judgment rendered by the lower court. Bagby v. M.K. & T. Ry. Co., 351 Mo. 79, 171 S.W.2d 673; Gratz v. Highland Scenic Ry. Co., 165 Mo. 211, 65 S.W. 223. (7) The court favors the free and unrestricted use of real estate, and the instrument or instruments purporting to restrict this property are ambiguous and should be canceled in favor of the free and unrestricted use of the property sought to be restricted. White v. White, 108 W.Va. 128, 150 S.E. 531; Bagby v. M.-K.-T.R. Co., 351 Mo. 79, 171 S.W.2d 673; Morrill v. Wabash, St. Louis & Pac. R. Co., 96 Mo. 174, 9 S.W. 657.

Justin D. Bowersock for respondent.

(1) The agreement is valid; the only question is the method of its enforcement. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545; Miller v. Klein, 177 Mo.App. 557, 160 S.W. 562; Porter v. Johnson, 115 S.W.2d 529; Porter v. Pryor, 164 S.W.2d 353. (2) The conditions have not changed except to make the agreement more effective. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545. (3) No forfeiture is asked, but only an injunction and the cancellation of a deed wrongfully made. Bovard v. Bovard, 352 Mo. 953, 180 S.W.2d 592; Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631; Porter v. Pryor, 164 S.W.2d 353; Porter v. Johnson, 115 S.W.2d 529. (4) The extension of the agreement. Porter v. Johnson, 115 S.W.2d 529. (5) The agreement is not unconstitutional. Corrigan v. Buckley, 27 U.S. 323, 46 S.Ct. 521; Russell v. Wallace, 279 U.S. 871, 49 S.Ct. 512; Cornish v. O'Donaghue, 279 U.S. 871, 49 S.Ct. 512; Grady v. Garland, 302 U.S. 394, 58 S.Ct. 13; Mays v. Burgess, 65 S.Ct. 1406; Porter v. Johnson, 115 S.W.2d 529; Mays v. Burgess, 147 F.2d 869.

OPINION

Douglas, J.

This is a suit in equity to enforce a restriction forbidding the conveyance of the premises at 2905 Park Avenue in Kansas City to a negro. The record shows the restriction was imposed on an area of two city blocks in Kansas City situated between 29th, 30th, Brooklyn and Olive Streets, with Park Avenue separating the two city blocks. The restriction was imposed by written agreement of the various property owners in three separate and successive instruments. In this suit the first agreement, dated November 1, 1928, is involved. It was signed by owners of various parcels of land situated in one city block only, the one bounded by 29th, Olive, 30th and Park Avenue. Twenty-one of the owners of the various parcels joined in this agreement. The restriction imposed by the agreement was to run for fifteen years with an extension of an additional fifteen years unless the parties took steps to terminate the restriction. In 1943, and while the first agreement was in force, the second agreement was made containing the same restriction and signed by the owners of some sixteen parcels in the other of the two city blocks. Then in 1944 the third agreement was made containing the same restriction and signed by the owners of still five more parcels situated in the city block covered by the first agreement. The three agreements do not cover all the parcels in both city blocks. Some owners in each city block did not sign any one of the agreements. All but three of the parcels situated in the block bounded by 29th, Olive, 30th and Park Avenue are covered by the agreements. However both city blocks are now and have been entirely occupied by white persons. No negro has occupied any parcel in either of the two blocks.

Martha Kuebler signed the first agreement. She owned the premises in question at 2905 Park Avenue. In March, 1945 she conveyed these premises to William F. Maxwell, a white person, who on the same day conveyed them to William J. Kyle and wife, who are colored persons.

Plaintiffs are owners of various parcels in the block bounded by 29th, Olive, 30th and Park Avenue. They are parties to the agreements either originally or as successors in title. By this suit they seek to cancel the deed to the colored persons; to enjoin them from occupying the premises; and to enjoin Maxwell from conveying or renting the premises to colored persons. The trial chancellor entered a decree granting the relief sought for.

The first agreement which imposed the restriction on the premises in question is as follows:

"Know All Men By These Presents, That whereas we, the undersigned owners in fee simple of Real Estate situate in Kidwells Addition, C. H. Pratts Park Ave Add., Henry B. Pains Addition, an additions in Kansas City, County of Jackson, and State of Missouri, do each and all desire that, for the period of fifteen years from and after the 1st day of Nov A.D., 1928, none of said Real Estate be devised, sold conveyed, leased, 'subleased' or descend to, or be occupied by, any person or persons of the African race or blood or descent, commonly called negroes; and that, for and during said period of fifteen years, the devises, sales, conveyances, leases and 'subleases,' use and occupation, of said Real Estate in said addition be so accordingly restricted: Now, Therefore, in consideration of the premises and of the mutual covenants, promises and agreements of the undersigned owners hereinafter set forth and contained, we the undersigned present owners of sundry parcels of Real Estate situate in said additions as shown by instruments of record in Jackson County, Missouri, do hereby agree and covenant with, and mutually promise to each other, and bind our heirs, devisees, grantees, lessees, and sub-lessees and ourselves jointly and severally, and the heirs, devisees, grantees, lessees and sub-lessees of each or any of us, that none of the Real Estate now owned by either or any of us and situate in said additions shall be at any time or times during said period of fifteen years from and after the 1st day of Nov. A.D., 1928, devised, sold, conveyed, leased or 'subleased' to, or occupied by, any person or persons of the African race or blood or descent commonly called negroes, of either mixed or whole blood; and that, if we or either or any of us, or any heir, devisee, grantee, lessee or sub-lessee of either or any of us, during said period of time, shall attempt to, or shall, devise, sell, convey, lease or sublease any of said Real Estate to any person or persons of said African race or blood or descent or if any person or persons of said African race or blood or descent commonly called Negroes be permitted to, or shall, occupy any of said Real Estate as tenants, or otherwise at any time during said period, then in any such event either or any of us, or any heir, devisee, grantee, lessee or sub-lessee of either or any of us may enjoin such devisee, sale, conveyance, lease, 'sub-lease' or occupation of said Real Estate or may...